Gramsci and law: some scattered observations

As those who have followed my blog from the beginning (do such people still exist?) may be aware that I have a great interest in Gramsci. I tend to think that Gramsci can be very relevant to law; provided his account is significantly reworked in line with my other theoretical interests. Whilst there have been a few attempts to theorise a Gramscian approach to the law[1], most of these approaches have attempted to apply Gramsci’s broader insights on hegemony to the law (and some of his attendant comments about the relationship between the two) but haven’t really looked at some of Gramsci’s other comments. So here is a passage I’ve always found interesting:

The concept of "legislator" must inevitably be identified with the concept of "politician". Since all men are "political beings", all are also legislators. But the distinctions will have to be made. "Legislator" has a precise juridical and official meaning - i.e. it means those persons who are empowered by the law to enact laws. But it can have other meanings too. Every man, in as much as he is active, i.e. living, contributes to modifying the social environment in which he develops (to modifying certain of its characteristics or to preserving others); in other words, he tends to establish “norms”, rules of living and of behaviour.[2]

In some ways this is just in line Gramsci’s usual ‘democratic’ conception of philosophy and politics[3]. However, we can begin to see some other interesting comments. Firstly, we might take this to be an interesting riposte as against a certain vulgar form of legal positivism. Although Gramsci seems to accept that law is ‘enacted’, he nonetheless problematises this, by rooting norm production in ‘everyday life’ (a sort of ‘law-from-below’ if you like). I personally would tend to read this in a less ‘subjectivist’ fashion than Gramsci seems to, so whilst I’d agree that ‘behaviour’ is what shapes the content of norms, I’d argue that this ‘behaviour’ itself has to be problematised and situated in a material context.

In general, it may be said that the distinction between ordinary men and others who are more specifically legislators is provided by the fact that this second group not only formulates directives which will become a norm of conduct for the others, but at the same time creates the instruments by means of which the directives themselves will be “imposed”, and by means of which it will verify their execution. Of this second group, the greatest legislative power belongs to the State personnel (elected and career officials), who have at their disposal the legal coercive powers of the State. But this does not mean that the leaders of “private” organisms and organisms do not have coercive sanctions at their disposal too, ranging even up to the death penalty. The maximum of legislative capacity that can be inferred when a perfect formulation of directives is matched by a perfect arrangement of the organisms of execution and verification, and by a perfect preparation of the “spontaneous” consent of the masses who must “live” those directives, modifying their own habits, their own will, their own convictions to conform with those directives and with the objectives which they propose to achieve.[4]

Gramsci’s conception here seems to be of a ‘continuum’ of types of ‘norm-creating behaviour’. Essentially it seems to be the case that law is that type of norm positing behaviour which is furthest reaching and endowed with the greatest set of ‘instruments’ for compliance. But Gramsci further notes that the ‘spontaneous’ consent of the masses is essential to the law here. So this introduces a further complication, ‘law’ has to secure the ‘consent’ of those it governs. If it has to secure their ‘consent’ does this mean that it has to in some way reflect their social expectations? Could this link back to Gramsci’s original point? Could we argue that ‘ordinary people’ shape legislative content precisely because said content must secure their consent. This inkling of an idea is further strengthened by the rest of Gramsci’s analysis:

If everyone is a legislator in the broadest sense of the concept, he continues to be a legislator even if he accepts directives from others – if, as he carries them out, he makes certain that others are carrying them out too; if, having understood their spirit, he propagates them as though making them into rules specifically applicable to limited and definite zones of living.[5]

Gramsci acknowledges that one may remain a legislator even whilst receiving ‘directives’ from others. This seems to bring into stark relief another question why do ‘legislators’ act as they do. Although we posed this question in respect of the ‘broad’ legislators, it remains pertinent in respect of juridical legislators too. If it is true that legislators themselves are immersed in a complex web of ‘others’ directives, is it not the case that they too are influenced, and could not these directives influence the directives of others. One is here reminded of Engels’ observations:

In the second place, however, history is made in such a way that the final result always arises from conflicts between many individual wills, of which each in turn has been made what it is by a host of particular conditions of life. Thus there are innumerable intersecting force, an infinite series of parallelograms of forces which give rise to one resultant — the historical event. This may again itself be viewed as the product of a power which works as a whole unconsciously and without volition. For what each individual wills is obstructed by everyone else, and what emerges is something that no one willed. Thus history has proceeded hitherto in the manner of a natural process and is essentially subject to the same laws of motion. But from the fact that the wills of individuals — each of whom desires what he is impelled to by his physical constitution and external, in the last resort economic, circumstances (either his own personal circumstances or those of society in general) — do not attain what they want, but are merged into an aggregate mean, a common resultant, it must not be concluded that they are equal to zero. On the contrary, each contributes to the resultant and is to this extent included in it.[6]

Once we link this perspective with that of Marx and Engels in the German Ideology, we can see where Gramsci is both right and wrong. Marx and Engels allege that the idea that law is a product of ‘will’ is a juridical illusion. Instead Marx and Engels hold that the content of the law is posited through the development of social relations, which is a perspective will understands that individual ‘wills’ are mediated, shaped and articulated within a given material context.

I would argue that Gramsci cannot reach the same conclusion as Marx and Engels (and indeed many other Marxist legal theorists) precisely because he perceives law as a directive. If law is a directive, then it must be directed by someone, through their will. If Gramsci were instead to see law as a specific social form, he would not need to have recourse to this position. Instead law can be seen as colouring, but also articulating social relationships, which need to be expressed within that form. This would not exclude ‘violence’ from his analysis, but it would allow him to understand that legal violence is a specific form of violence. Furthermore, it would allow him to develop his democratic perspective on the content of the law. Precisely because a legal form embodies social relations, it cannot simply be seen as the ‘will’ of the state. Furthermore, since social relations in capitalist society are contradictory and involve conflict, the law necessarily mediates these conflicts, which perhaps helps us to explain ‘spontaneous consent’ to the law.

Furthermore, these jurisprudential misconceptions about the law might also colour Gramscian uses of hegemony to explain ‘legal struggle’. If law is understood as a form (rather than just a directive) and a socially determined form at that, then ‘legal hegemony’ takes on a new meaning Traditional approaches have stressed that counter-hegemonic struggles can be engaged in through the law. If law is just a ‘directive’ backed up with varying degrees of force then it is a neutral instrument that can be used by anyone who wants to become hegemonic. But if law is a socially determined form, then it is linked to particular social relations. If we understand law as being rooted in commodity exchange, then it no longer becomes a ‘neutral’ instrument through which hegemony is gained but is in fact a hegemonic form. Any struggle which remains within such a form would ultimately remain within the coordinates of bourgeois hegemony, and be limited as such. This alerts us to a fact that is sometimes missed by Gramscians, hegemony is not just limited to substance, it can embrace form as well, in fact it might be argued that the hegemony of form is much more powerful. This is because if the hegemony of form is ultimately maintained, then progressive elements will have the illusion of success, even while remaining trapped inside bourgeois categories. To some degree I think Gramsci was grasping towards this approach but never quite found it. But until we resolve Gramsci’s jurisprudential issues, or situate him within a more complex framework, he may be more harm than good.[7]

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[1] See, e.g. Duncan Kennedy, Claire Cutler “Gramsci, Law, and the Culture of Global Capitalism.” Critical Review of International Social and Political Philosophy, vol. 8, no. 4 (2005): 527-42 and of course Alan Hunt’s previous project was a soi disant Gramscian one

[2] Antonio Gramsci, Selections From the Prison Notebooks (2003) London: Lawrence and Wishart at p.265

[3] See, e.g. ibid p.323

[4] Ibid p.266

[5] Ibid, p.266

[6] Engels’ letter to Bloch

[7] Claire Cutler’s work (op cit) is useful here, insofar as she attempts to use Kennedy’s commodity-form analysis of the law

Human rights

Lenin has posted an interesting article on Human Rights over at the tomb. Again, however, I think that there may be some, in my opinion, misconceptions and exaggerations going on.

The trouble with human rights, then. In itself, a codified set of rules about how human beings should be treated is both valuable and necessary.

I guess I might agree with this. But I would first point out that by the very notion of rights, we presuppose the legal form, which means we presuppose a particular set of material conditions. Which is why I'm not sure I agree with:

the reason it could do this is that it attempts to ground politics in something essentially apolitical.

Insofar as human rights are rights, i.e. the action of a being, interpellated through the legal form as a legal person they presuppose the existence of commodity producing society, this makes them deeply political, in fact their very structure is tied to a set of material relations. This being said, I suspect I have a slightly more positive view of human rights than Lenin, firstly:

Political contexts are eschewed, and instead shocking instances of brutality are interpreted as attesting to something constant in human nature that must be suppressed in various ways - usually be reducing the political sphere, since it is precisely in the domain of democratic possibility that governments can be beholden to 'special' interests rather than universal ones.

This division is surely premissed on the fact that political content cannot be expressed through the legal form. Yet, in fact, the converse is true. Every particular legal conjuncture is deeply political and hugely contestable. It does seem somewhat odd to privilige a particular 'political' sphere, especially when said sphere is structured around capitalism.

Wadham of Liberty argues that "Elected parliaments in this country and around the world have shown that, on their own, they are not able to protect human rights properly.". This lead him to call for removing the power to appoint judges from the elected government and place it in the hands of "an independent appointments committee".

This, in itself, has always been pretty problematic for me. Firstly, it seems that Lenin is exalting our 'elected government', this presumably is the same government who sent us to war in Iraq. Surely Lenin, following his namesake should ask the question: Who, whom? I think it is also worth noting that judges and their decisions are not entirely divorced from the sphere of the political, that is to say class struggle, would Lenin object to judges declaring the Terrorism Act incompatible with the Human Rights Act (the objection being based on the concept of a democratically elected government).

Human rights as an ideology is a potent mobiliser of support for imperialist interventions and, as mentioned, a formidable guarantor of legitimacy.

Correct, but with at least the possibility that human rights can be contestable.

The problem as I see it is thus:
1. What is the political? Although Human Rights movements insist on their apolitical nature we all know the truth, human rights are deeply political. If this is the case they are contestible, even if ultimately they need to be transcended.
2. If human rights can be political then this means that it is not necessarily true that their use is anti-democratic (although readers will know I have a serious problem with the legalisation of politics). Democratic politics, as taken as liberal democracy, are highly exclusionary insofar as they ignore the political dimension of the economic, would we say a strike was anti-democratic because it didn't involve formal political channels.

Ultimately I think I am of the view that human rights are a lot more complex than some people would like to admit. Firstly, they are obvious products of bourgeois society, inasmuch as the legal form is rooted in commodity exchange. This being said, and within the limited context I have previously outlined, with the growth of the legal form as primary social regulator, political dispute, regardless as to its progressiveness is expressed through the legal form. Although this is subject to a number of problems I have outlined it cannot simply be dismissed. The scope of a right is demarcated by particular material conditions.

China Miéville has shown that international law, is structured by the violence of imperialism (though I have my slight objections on this point). But human rights law is more difficult to pin down on this point. Because human rights law is related to legal human subjects it can be successfully appropriated by 'the people'. I mean, do any of us complain about the decision in Pinochet (notwithstanding the pathetic getout clause).

Whilst we should struggle to overcome human rights, I think our approached should be nuanced, Lenin writes (and quotes):

David Chandler, in his perspicacious book, (From Kosovo to Kabul: Human Rights and International Intervention, Pluto Press, 2002), has a better suggestion. The active subject must be re-emphasised. Mass politics must be reinvigorated, and we must make the most of "people's capacity for autonomy and collective rational decision-making, a capacity denied by the proponents of ethical regulation from above".

The point here is that the two are not mutually exclusive. Mass politics is of course primary but that does not mean efforts should not be made to re-capture human rights law. Human Rights are also not a priori connected to regulation from above. One can imagine a situation where certain human rights are seized upon and used against the oppressors (remember also that some human rights are economic).

The important thing to remember is that the legal form is not just a product of someone's imagination, it is an objective form posited by a certain set of material relations. Therefore, whilst we attempt to transcend its narrow form we must also engage with it and push it to its limits, for change is never so stagist as to move from 'legal egoism' to selfless mass action, the new is expressed through the old, and then it transcends it.

Zizek

My opinion on Slavoj Zizek is pretty similar to my opinion on Walter Benjamin. Both of them say some really interesting things, but sometimes I'm left staring at the page/screen thinking 'what the hell is going on'. In Zizek's case me having a rudimentary, at best, knowledge of Lacanian psycho-analysis is no help. However, for those of you who are subsrcibed to New Left review, he wrote an interesting article last issue, entitled Against Human Rights. Now, obviously since it was Zizek the subject matter strayed quite a lot. One thing that I really agree with him on is the role 'rights' play in depoliticising struggles, and de-linking the economic sphere from our attention. As Zizek puts it:

However, the question is: what kind of politicization do those who intervene on behalf of human rights set in motion against the powers they oppose? Do they stand for a different formulation of justice, or do they stand in opposition to collective justice projects? For example, it is clear that the us-led overthrow of Saddam Hussein, legitimized in terms of ending the suffering of the Iraqi people, was not only motivated by hard-headed politico-economic interests but also relied on a determinate idea of the political and economic conditions under which ‘freedom’ was to be delivered to the Iraqi people: liberal-democratic capitalism, insertion into the global market economy, etc. The purely humanitarian, anti-political politics of merely preventing suffering thus amounts to an implicit prohibition on elaborating a positive collective project of socio-political transformation.

However, I think that Zizek's conception of Human Rights is a bit one dimensional. Insofar as he ignores the positive impact that they can have, in terms of people's lives. This is reminscent of certain Brezhevites, who talk about 'bourgeois' political rights, which we have to counterpose to 'proletarian' economic rights. This is me is nonsense. In a very real sense all rights are bourgeois, inasmuch as their form is rooted in commodity exchange. But this does not tell us everything about their content or their effect in the material world.

Until it is possible to transcend the law it need to be vigorously contested, in line with an explicit class struggle.

However, we should try to transcend the notion of broad generalities of right, becuase (as I have already noted) these rights are indeterminate, and so can be 'captured'. An example can be taken from a recent land law lecture. Here, the lecturer was talking about a generalised 'right' or law for unproductive land to be expropriated and put to better use. Now, on the one hand, this could create good factual situations, where the poor peasantry are able to occupy and use the land of big business (a la Venezuela). Yet the very scope of such a right simulataneously allows capital the power to kick people out of their homes for 'development'.

The 'bad side' of the right is always contained as a 'potentiality' within the right itself but it needs a particular set of circumstances to actualise. What I think it would be interesting to see is how class struggle is able to demarcate the 'scope' of a right, so that its material effect is different. Becuase if content is, to a degree 'up for grabs', people like Zizek might do better to capture the content and engage in critique.